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Gruby v. Department of Public Health

Court of Appeals of Illinois, Second District

March 26, 2015

MARVIN GRUBY, Plaintiff-Appellant,
THE DEPARTMENT OF PUBLIC HEALTH, LAMAR HASBROUCK, in His Official Capacity as Director of Public Health, and MANORCARE HEALTH AND REHABILITATION SERVICES, d/b/a Manorcare Highland Park, Defendants-Appellees

Modified Upon Denial of Rehearing June 17, 2015.

Page 1012

Appeal from the Circuit Courtof Lake County. No. 14-MR-0354. Honorable Christopher C. Starck, Judge, Presiding.

Suzanne Courtheox and Emiliya Gumin Farbstein, both of Legal Assistance Foundation, and Kristi L. Nelson and Jennifer M. Schwartz, both of Chen Nelson Roberts, Ltd., both of Chicago, for appellant.

Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro, Solicitor General, and Frank Bieszczat, Assistant Attorney General, of counsel), for appellees Lamar Hasbrouck and Department of Public Health.

Matthew R. Heimlich, of McVey & Parsky, LLC, of Chicago, for appellee Manorcare Health and Rehabilitation Services.

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Hutchinson and Spence concurred in the judgment and opinion.



Page 1013

[¶1] In this administrative review action, plaintiff, Marvin Gruby, contends that defendant the Illinois Department of Public Health (Department) violated provisions of the Illinois Nursing Home Care Act (Act or Nursing Home Care Act) (210 ILCS 45/1-101 et seq. (West 2012)) and the federal Nursing Home Reform Amendments (Pub. L. No. 100-203, § § 4201-4218, 101 Stat. 1330 (1987) (codified as amended in scattered sections of 42 U.S.C.)). He maintains that the violation occurred when the Department declined to complete a hearing on his involuntary transfer or discharge from a nursing facility owned by defendant Manorcare Health and Rehabilitation Services, d/b/a Manorcare Highland Park (Manorcare). According to plaintiff, he had a right to a hearing even though Manorcare had withdrawn its notice of involuntary transfer or discharge, because Manorcare simultaneously refused to readmit him to the facility following a brief hospitalization. For the following reasons, we affirm.


[¶3] Plaintiff became a resident of Manorcare's Highland Park facility in August 2012. On October 7, 2013, Manorcare delivered to plaintiff a notice of involuntary transfer or discharge, as contemplated by section 3-402 of the Act (210 ILCS 45/3-402 (West 2012)) and by 42 U.S.C. § 1396r (42 U.S.C. § 1396r(c)(2)(B) (2012)). The notice was on a Department form and indicated that Manorcare sought to transfer or discharge plaintiff because " the safety of individuals in this facility is endangered" (see 42 U.S.C. § 1396r(c)(2)(A)(iii) (2012)) and because " the health of individuals in the facility would otherwise be endangered, as documented by a physician in [plaintiff's] clinical record" (see 42 U.S.C. § 1396r(c)(2)(A)(iv) (2012)). Pursuant to section 3-410 of the Act (210 ILCS 45/3-410 (West 2012)), plaintiff timely filed a request for a hearing with the Department.

[¶4] A hearing commenced but was continued for various reasons. On February 9, 2014, before the hearing was completed, plaintiff entered Northwestern Memorial Hospital for a preplanned surgical procedure. Two days later, Manorcare informed plaintiff that it would not allow him to return to the facility upon his discharge from the hospital. Plaintiff's counsel e-mailed Manorcare's counsel, asserting that plaintiff was entitled to a 10-day bed hold during his hospitalization, pursuant to section 3-401.1 of the Act (210 ILCS 45/3-401.1 (West 2012)). Manorcare's counsel responded that the facility administrator had " discussed the situation at length" with Manorcare's corporate legal department and had " determined that the liability the facility face[d] for allowing [plaintiff] back into the facility [was] greater than any sanction they may incur from the [Department]." Counsel for Manorcare indicated that withdrawal of the notice of involuntary

Page 1014

transfer or discharge would " be forthcoming shortly." Counsel further represented that Manorcare had located another facility that was willing to admit plaintiff.

[¶5] Manorcare then notified the Department via a certified letter that it was " formally withdraw[ing]" its notice of involuntary transfer or discharge, and it asked the Department to " close this file with your office." In an e-mail to the Department's administrative law judge (ALJ) assigned to the matter, plaintiff requested that his hearing continue, arguing that it was " illegal and inappropriate for the facility to discharge [him] *** in the middle of his involuntary discharge hearing." Plaintiff further argued that Manorcare violated the Act's bed-hold provision by refusing to readmit him following his hospitalization.

[¶6] On February 18, 2014, the ALJ issued a written report and recommendation, finding that Manorcare had " sent a letter of withdrawal" and that " [t]he Notice of Involuntary Transfer or Discharge would no longer be necessary." On February 24, 2014, the Department accepted the ALJ's recommendation and entered a final order " dismissing" Manorcare's notice of involuntary transfer or discharge and closing the matter without completing plaintiff's hearing.

[¶7] Plaintiff timely filed a complaint for administrative review in the circuit court of Lake County. On the Department's motion, the court dismissed the complaint with prejudice on the ground that the controversy became moot when Manorcare withdrew its notice of involuntary transfer or discharge. Plaintiff timely appeals.


[¶9] Plaintiff contends that this appeal presents " a narrow legal issue that has significant public policy implications." He frames the issue as follows: " [C]an a State and Federally regulated nursing home facility eliminate a resident's statutorily protected right to an involuntary discharge hearing by simply withdrawing its notice of discharge but simultaneously refusing to allow the resident to return to *** the facility after hospitalization?"

[¶10] A. Motion to Strike Manorcare's Brief

[¶11] As an initial matter, we address plaintiff's request that we strike Manorcare's brief for violations of Illinois Supreme Court Rule 341 (eff. Feb. 6, 2013). Plaintiff correctly points out that the brief does not contain any citation of authority or the record, in violation of the requirement that an appellee's brief contain argument " with citation of the authorities and the pages of the record relied on." Ill. S.Ct. R. 341(h)(7), (i) (eff. Feb. 6, 2013).

[¶12] A party's brief that fails to substantially conform to the pertinent supreme court rules may justifiably be stricken. Hall v. Naper Gold Hospitality LLC, 2012 IL App. (2d) 111151, ¶ 7, 969 N.E.2d 930, 360 Ill.Dec. 885. The purpose of the rules is to require parties to present clear and orderly arguments, supported by citations of authority and the record, so that this court can properly ascertain and dispose of the issues involved. Hall, 2012 IL App. (2d) 111151, ¶ 7. Striking a party's brief, in whole or in part, is a harsh sanction and is appropriate only when the violations hinder our review. Hall, 2012 IL App. (2d) 111151, ¶ 15.

[¶13] We conclude that Manorcare's glaring rule violations warrant striking its brief. Not only has Manorcare failed to cite a single authority or the record, but also it has provided only one page of ...

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